Electronic monitoring (EM) looms high on the list of alternatives to incarceration for corrections officials seeking solutions to overcrowded prisons and budget deficits. First used in 1983, today some 200,000 people in the United States wear some sort of electronic monitor, typically an ankle bracelet required as a condition of probation, parole, bail or house arrest.

For high-profile lawbreakers like Martha Stewart and Lindsay Lohan, the ankle bracelet is a badge of privilege – a high-tech mode of avoiding time behind bars. For those with more ordinary cases, release on electronic monitoring may offer offenders an opportunity to reunite with their family and find employment. Nonetheless, the introduction of EM on a broader scale raises a number of concerns.

The Legal Framework

The first issue is that in most cases electronic monitoring programs operate under questionable legal frameworks, typically excluding or minimizing any rights or entitlements for the people being monitored. For example, laws in Illinois, Rhode Island and North Carolina deal primarily with the technical minutiae of supervision, emphasizing guarantees of public safety and spelling out penalties for rule violations. A small section includes a list of activities which a person on electronic monitoring “may” be allowed to do. Those include work, medical treatment and attending educational programs. Other frameworks, such as California’s Penal Code Section 1210.7-1210.16 and the State of Montana’s Policy Guidelines, contain no mention of approved activities for those being electronically monitored.

Since a primary selling point of EM for those on parole is the opportunity to work and reintegrate with family, assurances of access to such activities need to be established as rights. Moreover, in practice, the power to grant or deny “movement,” such as leaving one’s house, rests with parole officers. This can create problems. For example, most supervising authorities require a list of an offender’s movements to be submitted in advance, making responses to requests for job interviews, changes in work schedules, or tending to family emergencies or medical conditions extremely difficult. Further, parole officers usually have the power to impose a “lockdown” – 24-hour house arrest – for any reason or period of time.

While Hamilton Country, Indiana offers specific avenues of appeal to challenge denials of movement, most jurisdictions provide no such guarantees. In general, a parole officer’s decisions may only be contested after the fact through the courts. This may bring some relief in the long run, but in the short term a parolee’s opportunity to successfully reintegrate into society can be jeopardized by overzealous enforcement of EM rules.

This problem with the legal framework of electronic monitoring highlights an issue raised by legal scholar Erin Murphy, who contends there has been insufficient legal scrutiny of “deprivation of liberty by technological means” – a situation which is increasingly becoming an issue as GPS monitors and similar devices are used with greater frequency.

Further Concern: Private Corrections Companies

Another concern is the involvement of private corrections firms in the EM industry. The giant in this market is Behavior Interventions, Inc. (BI), a Colorado-based company that controls about 30% of the electronic monitoring market in the United States. In 2011, BI was bought out by The GEO Group, the second-largest corrections corporation in the U.S., which positioned GEO for growth in the EM sector. [See: PLN, April 2011, p.40].

The role of private corrections companies in electronic monitoring programs raises several questions. First, such firms exaggerate the cost savings of EM by simply comparing per diem costs of EM with those of incarceration. The comparison is not that simple. Many people who are placed on electronic monitoring would not have been incarcerated before the advent of EM technology; they would have been supervised non-electronically, a practice that is still prevalent.

Second, comparing per diem costs between prison and EM distorts the reality. A large part of corrections costs are fixed. For example, if 10% of a state’s prison population was released on electronic monitoring, staffing and other over-head costs would not decrease by 10%. Hence, the savings delivered by electronic monitoring need to be calculated holistically, not by merely using the rosy estimates of those who advocate EM, including the companies that offer such services.

Then there is the need to generate profit. At present, EM programs are increasingly turning toward user fees, typically $10–15 per day plus startup costs. While such fees don’t present a problem for the wealthy, like Stewart or Lohan, most people on parole or probation fall in an entirely different income bracket. The questionable history of firms like The GEO Group in terms of prisoner abuse, corruption, lobbying and political contributions foreshadows a range of misdeeds and improper influence with regard to electronic monitoring.

At the most basic level, a continual incremental increase in user fees due to the need for EM companies to generate profit would further disadvantage the predominantly poor people of color who are placed on electronic monitoring. Further, since people who complete their term of EM no longer generate revenue, monitoring companies have a financial incentive to push for longer terms of supervision or stricter rules that would lead to increased recidivism.

In fact, such companies are already seeking to expand their market; i.e., to find new populations to bring under the net of electronic monitoring. Currently at least two new groups are being considered for EM services: immigrants awaiting judicial decisions and high school students with records of extensive truancy.

With respect to immigrants, in 2009 BI signed a five-year, $372 million contract with Immigration and Customs Enorcement (ICE) to monitor some 27,000 people awaiting asylum or deportation hearings. In the high school student market, a major EM firm in Texas, iSECUREtrac, funded a pilot monitoring project for students with truancy records in a largely Black and Latino school district in Dallas.

It is unlikely the quest for new EM “customers” will stop there. For example, future lobbying efforts by private monitoring companies might advocate electronic supervision for those with drug or mental health histories, people receiving public assistance or immigrants with green cards. It is difficult to say how far EM services may eventually expand.

Thus, while there might be cause in the near future to celebrate the transfer of thousands of people from prison to electronic monitoring programs, those involved in trying to transform the criminal justice system need to pay close attention to how such programs evolve. Without more careful regulation of EM services and the private companies that provide them, we may one day be lamenting the problem of mass monitoring in addition to mass incarceration.

James Kilgore is a researcher, criminal justice activist and fiction writer. His two novels, We Are All Zimbabweans Now and Freedom Never Rests, were written during his six-and-a-half years of incarceration in California. This article emerges from a larger research project on electronic monitoring.